Citation Nr: 21028861 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-38 251 DATE: May 12, 2021 ORDER Entitlement to service connection for B-cell leukemia, to include as due to exposure to certain herbicides is denied. REMANDED Entitlement to service connection for a trachea disorder due to herbicide exposure is remanded. Entitlement to service connection for a respiratory disorder due to herbicide exposure is remanded. FINDING OF FACT The Veteran does not have a diagnosis of B-cell leukemia. CONCLUSION OF LAW The criteria for service connection for B-cell leukemia, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1959 to February 1980. In July 2019, the Board remanded the claims for further development. With regard to the February 2021 examination obtained in connection with the Veteran's claim of service connection for B-cell leukemia, the Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the Veteran's claims for service connection for trachea and respiratory disorders, the Board finds that additional development is needed based on the information obtained during the last remand. Thus, these claims will be addressed in the remand portion of the decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for B-cell leukemia, to include as due to exposure to certain herbicides The Veteran contends that he has B-cell leukemia that is related to service. The Board finds that there is no competent evidence in the record showing that the Veteran has a diagnosis of leukemia. Crucially, the record does not contain any evidence other than the Veteran's own speculative general conclusory statement that he suffers from leukemia due to his military service. This is insufficient to substantiate the claim. The Board has reviewed the Veteran's service treatment records, as well as post-service treatment records. The Veteran has undergone significant treatment for various medical conditions including, but not limited to coronary artery disease, hearing loss, asthma, shoulder pain, and prostate cancer. In his extended medical history, however, there is not a single reference to leukemia. More specifically, the Veteran's records do not contain a diagnosis of leukemia or any form of treatment related to leukemia. Notably, the Veteran was afforded a VA hematologic and lymphatic conditions examination in February 2021. Following an in-person examination and review of the claims file, the examiner concluded that the Veteran did not have a diagnosis at any time of leukemia, to include B-cell leukemia. Additionally, no hematological or lymphatic condition was noted upon examination. The examiner acknowledged the Veteran's subjective reports of B-cell leukemia but noted that there was no objective finding of the condition. The examiner also noted that the Veteran's medical records were silent as to a diagnosis, treatment, or complaints for B-cell leukemia. The Board acknowledges the Veteran's contention that he currently has leukemia that is related to his period of service. However, whether the Veteran meets the required diagnostic criteria for leukemia is a complex medical question and is not within the realm of knowledge of a lay person or determinable by observation with one's senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran's statement is not competent evidence and not probative. Without a current diagnosis of leukemia, the first requirement for establishing service connection has not been met. Therefore, the Board finds the preponderance of the evidence is against the claim for service connection for leukemia. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a trachea disorder due to herbicide exposure 2. Entitlement to service connection for a respiratory disorder due to herbicide exposure The Veteran contends that he has a respiratory and trachea disorder that is related to service, to include as due to his exposure to herbicide agents. The Veteran testified during the February 2019 hearing that he has a current diagnosis of a respiratory disorder and was being treated for it, specifically noting that "they treat me all the time for the pulmonary area and the wind pipe. I get congestion in there and I have several different types of medication that the VA has given me right now." The Veteran additionally testified that he suffered a lung injury while in service where his lung was punctured. The Veteran's service treatment records document additional pulmonary injuries. These include a March 12, 1965 report of an "empty feeling in his chest;" a June 20, 1977 Report of Medical Examination wherein a notation was made concerning the Veteran's throat wall; a January 1978 report of sinus congestion that lasted for three weeks; a March 1978 report of recurring sinusitis; a report in August 1979 which document cyst removal mid sternum in the chest wall; and a September 1979 Report of Medical Examination which documented pulmonary function test percentage of forced expiratory volume 1 second - 78 and percentage total vital capacity - 91. Post-service records, dated December 2008 reveal that the Veteran presented with chest pain. The Veteran was assessed with post CABG with worsening atelectasis, post chest tube removal. A VA treatment record dated September 2012, shows that the Veteran was diagnosed with mild biapical emphysema and simple hepatic cyst. A June 2018 problem list also reveals that the Veteran had been previously diagnosed with asthma. A December 2018 VA treatment record showed that the Veteran presented with complaints of nighttime dry coughing. The clinician stated that the Veteran had chronic allergic rhinitis and was currently reporting rhinorrhea. A June 2019 VA treatment record shows complaints of shortness of breath, coughing, and wheezing. A January 2020 VA treatment record reveals that the Veteran has a history of asthma and allergic rhinitis. Considering the Veteran's in-service complaints and injuries and his current respiratory injuries, the Board remanded the claims to determine whether the Veteran had any respiratory disabilities including trachea condition(s) and to determine whether such was/were incurred in or aggravated by his active duty, to include his presumed exposure to herbicide agents. In a December 2020 respiratory examinations, diagnoses of emphysema, asthma, status-post collapsed lung with surgical repair, and chronic sinusitis were noted. In a December 2020 radiology consultation note, a clinician noted mucoperiosteal thickening ethmoid and left maxillary sinuses, otherwise negative paranasal sinuses. During the respiratory examination, the examiner reported that pulmonary function tests were unable to be performed due to COVID-19 precautions and CDC guidelines. The examiner opined that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner rationed that there was no evidence found in the claims file of a respiratory or trachea disability that was incurred in or aggravated by service. Additionally, the examiner opined that it was less likely than not that the Veteran's claimed conditions were related to service. The examiner reasoned that although there was in-service documentation in April and May 1976 of a collapsed lung with surgical operation, an August 1979 notation showed a normal chest x-ray and a December 2017 chest x-ray showed no evidence of pleural effusions or pneumothorax. The examiner also noted that there was no evidence found in the claims file of a diagnosed respiratory disorder that was incurred in or caused by Agent Orange exposure during service. The examiner also reported that the claimed trachea condition was acute only, again noting the normal chest x-ray conducted in December 2017. The examiner further acknowledged an August 2015 diagnosis of mild, persistent asthma but concluded that there was no evidence in the Veteran's claims file claims file showing that a claimed respiratory or trachea disability was incurred in active duty, to include his presumed exposure to certain herbicides. The Board finds that the medical opinions provided are inadequate for several reasons. First, the opinion does not appear to be predicated on due consideration of the Veteran's lay statements and accepted medical principles, but rather an overreliance on the fact that a respiratory disorder was not diagnosed during service. Additionally, the examiner relied on an inaccurate premise and used an incorrect standard for evidence of a condition existing prior to service. Specifically, the examiner noted that the Veteran's conditions clearly and unmistakably existed prior to service, but then reasoned that there was no evidence found in the claims file of a respiratory/trachea disability. Here, the Veteran's February 1959 Report of Medical Examination, conducted at entry, reveals a normal clinical evaluation of the sinuses, mouth and throat, and lungs and chest. Therefore, the Veteran is presumed sound, and clear and unmistakable evidence is required to rebut the presumption of soundness. As this matter is being remanded, the Board will also allow the Veteran a final opportunity to identify private treatment providers, as the information that he previously provided was incorrect/incomplete. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his relevant disabilities. The Veteran should be requested to sign any necessary authorization for release of private medical records to VA, and appropriate steps should be made to obtain any identified records. 2. Schedule the Veteran for a VA examination by a pulmonologist, or appropriate specialist, to determine the etiology of any respiratory and trachea disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiners as part of the examinations. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted and the results reported, including PFT testing (if possible). a. After considering the pertinent information in the record in its entirety, the VA examiner should identify any respiratory disabilities, to include trachea conditions. The examiner is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any respiratory or trachea disability identified, was incurred or aggravated by his active duty to include his presumed exposure to certain herbicides (i.e. Agent Orange). **The Veteran is presumed sound on entry into service and, therefore, an opinion addressing in-service aggravation or stating that any respiratory/trachea disorder began prior to service is inadequate. **In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of any Veteran respiratory disability and any continuity of symptoms since that time. ** The examiner's attention is drawn to the following and each should be addressed in the opinion: (i) The Veteran's February 2019 testimony that he suffered a lung injury while in service where his lung was punctured, (ii) The Veteran's current diagnosis of mild biapical emphysema and simple hepatic cyst documented in a VA September 2012 CAT scan. And, a diagnosis of asthma most recently documented in a June 2018 VA problem list, (iii) Service treatment records including: (A) a March 12, 1965 report of an "empty feeling in his chest;" (B) a June 20, 1977 Report of Medical Examination wherein a notation was made concerning the Veteran's throat wall; (C) a January 1978 report of sinus congestion that lasted for three weeks; (D) a March 1978 report of recurring sinusitis; (E) a report in August 1979 which document cyst removal mid sternum in the chest wall; (F) a September 1979 Report of Medical Examination which documented pulmonary function test percentage of forced expiratory volume 1 second - 78 and percentage total vital capacity - 91. Lastly, if any diagnosed disorder(s) is determined to not be related to service, please identify the more likely etiology for the diagnosed disorder. 3. Readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.